Bombay High Court
Ruttonsey Lalji And Ors. vs Pooribai And Ors. on 15 June, 1883
Equivalent citations: (1883)ILR 7BOM304
JUDGMENT Scott, J.
1. I am asked to give effect to the 375th section of the Civil Procedure Code (Act XIV of 1882), and to record 3,11 agreement by which this suit has been adjusted between the parties. I cannot find in the Reports any instances of the application of this section, but two instances of the application of an analogous section, Section 523, have been brought to my notice.
2. It has been argued that Section 374 only applies where the parties are in agreement at the moment of moving the Court; and that, if they are not then in accord, the only remedy on the agreement sought to be enforced is by suit for specific performance. Such a reading of the clause would deprive it of all utility, as parties in agreement can, apart from this section, either come into Court with a consent decree, or put in force Section 152 of the Code. To give the section substantive effect I must interpret it more largely than the plaintiff desires. I think the Legislature introduced this rule to meet the case where parties, having agreed together, subsequently fall out. It was devised as an alternative and more expeditious course than a separate suit for specific performance, which remedy still remains open to the parties. I prefer, therefore, to follow the analogy of the decisions on Section 523, and to hold that this section is intended to enforce agreements unconditionally made even though one of the agreeing parties should wish to withdraw his consent.
3. I have examined the English authorities on this subject, and I find my view is in accordance with the most recent decisions. The outcome of the various cases I have consulted is that "a simple agreement between the parties for the compromise of the suit can be enforced by interlocutory application in the existing cause; but when the agreement goes beyond the subject-matter of the suit the remedy is by bill for specific performance." See Pryer v. Gribble L.R. 10 Ch. Ap. 534; Scully v. Lord Dundonald L.R. 8 Ch. Div. 658. See also Judicature Act, 1873, Section 24 Sub-section 7 Vide note, ante, p. 307. This rule is somewhat extended by the Indian law, for Section 375 of the Civil Procedure Code says "the Court shall pass a decree in accordance with the agreement so far as it relates to the suit."
4. It was further contended that the agreement in question was conditional, and not absolute. It is, however, absolute in its written terms; and to admit any oral agreement in contradiction would be against Section 92 of the Evidence Act (I of 1872).
5. Moreover, the alleged conditional character of the document is denied, not only by the defendant, but also by the two persons who were called in as friends of the respective parties to arrange all matters in dispute.
6. It is also argued that such a matter should not be settled on affidavit, but as a special issue on oral evidence. I can conceive cases where such a course might be advantageous, and as no procedure is prescribed, I presume the Court could order it. But I do not think it is necessary in the present case. The procedure followed by the defendant, though, not prescribed by Section 375, is the one adopted in England in similar circumstances, and is analogous to that laid down in Section 523 and in Section 258 of our Code. I hold it sufficient in the circumstances of the case.
7. It is worth noticing on this point that by the agreement the defendant concedes all that the plaintiffs asked for in their plaint. She says in so many words "I am not to make my house higher than it was originally."
8. The agreement contains two undertakings, only one of which relates to the subject of this suit. But the two matters are quite distinct, and the performance of the one is not dependent on the performance of the other. Section 375 only enables me to enforce that which relates to the subject-matter of the suit. I, therefore, order that the agreement be recorded, and that a decree issue in accordance with it, so far as, it relates to the subject-matter and the settlement of this suit, excluding the arrangement, as regards the gully. Costs to be borne by the plaintiffs.